HARVARD LAW SCHOOL Professor Charles Nesson has raised the stakes on the MAFIAA Big Music recording companies in their lawsuit against Joel Tenenbaum by arguing that the litigation is an abuse of federal process and the US statute it relies upon is unconstitutional.

Defendant Tenenbaum was a teenager when he allegedly downloaded just seven tunes over a Peer-to-Peer (P2P) file sharing network, for which the recording company plaintiffs have sued him in US federal court for copyright infringement under the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999.

Over the course of years of litigation, during which he represented himself pro se with the help of his mother, Tenenbaum has filed a set of counterclaims against the music company plaintiffs, which he is pressing to have tried before a jury, and he also seeks to tack on the RIAA as a counterclaim defendant. It is in this context that Harvard Law School appears.

On their bog, Professor Nesson and law students Shubham Mukherjee and Nnamdi Okike link to the court filings and excerpt their reasons for aiding Tenenbaum with his defence:

"The Recording Industry Association of America (RIAA) is in the process of bringing to bear upon the defendant, Joel Tenenbaum, the full might of its lobbying influence and litigating power. Joel Tenenbaum was a teenager at the time of the alleged copyright infringements, in every way representative of his born-digital generation. The plaintiffs and the RIAA are seeking to punish him beyond any rational measure of the damage he allegedly caused. They do this, not for the purpose of recovering compensation for actual damage caused by Joel’s individual action, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using computers, and so frightening to parents and teachers of students using computers, that they will somehow reverse the tide of the digital future."

To help Tenenbaum defend his counterclaims, Professor Nesson and his Cyberone team filed a response opposition to plaintiff's motion to dismiss, in which they charged that the federal law upon which the plaintiffs have hung their complaint is essentially a criminal rather than civil statute, because it seeks to punish those who fall afoul of its provisions with minimum statutory penalties that are very far out of proportion to actual damages.

A crucial distinction between criminal law and civil law is that criminal statutes impose penalties intended to punish offenders for crimes against society, whereas civil statutes impose remedies to equitably redress damages caused by one private party to another.

That the penalities specified by the statute at issue are excessive is supported by the facts that, while the market value of a song is 99 cents on Itunes, or $6.93 for seven songs, the statutory penalties are a minimum of $750 per song, rising to a maximum of $150,000 per song for copyright infringement " committed willfully."

In his filing, Nesson argues that these penalties are excessive because that statute would be "wholly analogous" to a traffic law that provides the following penalties for speeding:

(1) a $750 fine for every mile per hour (mph) over the speed limit, increasing to $150,000 per mph over the speed limit if the speeder knew he was speeding;

(2) the fines are not publicised and few drivers know they exist; and

(3) enforcement is not by the government but by a private police force... " that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines."

Nesson therefore contends that, if the law in question is essentially criminal rather than civil in nature, then several judicial conclusions of law necessarily must follow, that is:

Defendants are entitled to the due process accorded criminal defendants, including criminal procedure and right to a jury trial.

Congress has violated the Constitution by puttng the prosecution of a criminal statute in the hands of private parties.

Congress has violated the Constitution's separation of powers by requiring the courts to try cases according to inappropriate civil processes.

Congress has violated the 5th and 8th Amendments to the Constitution by requiring “grossly excessive statutory damage awards.

Tenenbaum's legal advocates summarise their prayer for relief from the court as follows:

"Joel seeks damages to compensate for the actual damage RIAA has done to him and his family. He claims the right to trial by jury including the right to offer proof and argument to the jury about what is right and what is wrong on both sides of this case. In the face of the onslaught the plaintiffs have imposed and are continuing to impose upon him he seeks justice from both judge and jury.

"At core his defenses and counterclaim raise a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs in the machine, or do judge and jury claim the right and duty and power of constitution and conscience to do justice."

The US District judge presiding over this case of the MAFIAA versus Tenenbaum might or might not find these arguments persuasive, but in either event it seems inevitable that the outcome will be switched to the US Circuit Court of Appeals and perhaps even to the US Supreme Court. If so, this case could have important and very far reaching consequences.

If Nesson's constitutional argument eventually prevails in this lawsuit, it just might put the recording industry MAFIAA out of its presently legal copyright extortion business forever.

And in a country where unscrupulous lobbyists legally bribe lawmakers with 'campaign contributions' to routinely purchase laws that disproportionately favour the interests of amoral and immortal corporations over the values and needs of its people, and where obscene profits are privatised by the very rich while losses are socialised and extracted from the population through taxation and monetary inflation, it's immensely satisfying to see someone fighting back against the injustice of it all. µ

The RIAA making people paying them to leave them alone is BS... you either go after them or not. None of the artists ever see any of that settlement money cause it goes back into the hunt for more people they accuse of downloading illegal music.

They may as well give up and accept the fact that you will never stop people from downloading music for free. They just need to find ways better ways and make songs cheaper to download via a paid service. Even 99cents is still way to high per song when people can get them for free.